Volume 64 — Washington Appellate Reports

<bold>[1] Sexual Offenses — Communication With Minor for Immoral</bold> <bold>Purposes — Felony — Prior Conviction — Validity — Degree of</bold> <bold>Proof.</bold> For purposes of charging communication with a minor for immoral purposes as a felony based on the defendant's having been convicted of a similar offense (RCW <cross_reference>9.68A.090</cross_reference>), the State is not required to prove the validity of the prior conviction beyond a reasonable doubt; the conviction need only be facially valid. <bold>[2] Criminal Law — Punishment — Sentence — Criminal History —</bold> <bold>Validity of Convictions — Plea of Guilty — Facial Invalidity</bold> <bold>— Waiver of Right To Remain Silent.</bold> The failure of a guilty plea form to include a waiver of the defendant's right to remain silent does not render the conviction facially invalid. <bold>[3] Sexual Offenses — Communication With Minor for Immoral</bold> <bold>Purposes — Meaning of Words — "Immoral Purposes" —</bold> <bold>Vagueness.</bold> In a prosecution for communication with a minor for immoral purposes, an instruction requiring the communication to be for "immoral purposes of a sexual nature" is unconstitutionally vague. <bold>[4] Criminal Law — Trial — Instructions — Harmless Error —</bold> <bold>Constitutional Error.</bold> Constitutional error in an instruction is harmless if an appellate court is convinced beyond a reasonable doubt that the jury would have reached the same decision in the absence of the error.<page_number>Page 102</page_number> <bold>[5] Criminal Law — Trial — Instructions — Theory of Case.</bold> The basic requirement for instructions is that they permit each party to argue its theory of the case. <bold>[6] Criminal Law — Trial — Misconduct of Prosecutor — Argument —</bold> <bold>Waiver — Failure To Request Curative Instruction.</bold> Improper prosecutorial argument does not necessitate a mistrial if any prejudice resulting from the statements could have been cured by an instruction that the defendant failed to request. <bold>[7] Criminal Law — Trial — Misconduct of Prosecutor — Argument —</bold> <bold>Role of Jury.</bold> It is not improper for a prosecutor to tell the jury that it sits as the representative of the whole community and that its decision will determine whether the defendant will be set free or held to account. <bold>[8] Criminal Law — Trial — Irregularities — Mistrial — Review —</bold> <bold>Discretion of Court.</bold> A trial court's denial of a motion for a mistrial is reviewed under the abuse of discretion standard.

<bold>[1] Administrative Law — Hearing — Summary Disposition — In</bold> <bold>General.</bold> Although the Administrative Procedure Act (RCW 34.05) does not provide for an administrative summary judgment, a legislatively created board or agency may dispose of an issue in a summary procedure when there is no genuine issue of material fact and the board or agency is acting in a quasi-judicial capacity. Judicial review of a summary disposition is conducted by viewing all the facts and reasonable inferences therefrom most favorably to the nonmoving party. <bold>[2] Statutes — Construction — Administrative Construction —</bold> <bold>Effect.</bold> The construction placed on a statute by the administrative entity charged with applying it should be given great weight by the courts. <bold>[3] Environment — Shoreline Management — Development Permit —</bold> <bold>Water Dependent Use — Office Building.</bold> The Shoreline Management Act of 1971 (RCW 90.58) does not require that a shoreline office building be an integral part of, or be related to, the water-dependent use built in conjunction with the office building. <bold>[4] Statutes — Construction — Unambiguous Language — Legislative</bold> <bold>History.</bold> The meaning of plain and unambiguous statutory language is derived from the language itself; there is no<page_number>Page 274</page_number> justification to examine the legislative history of the enactment for further indication of legislative intent. <bold>[5] Environment — Shoreline Management — Development Permit —</bold> <bold>Water Dependent Use — Certainty of Use.</bold> Absolute certainty of future water-dependent use is not required under the Shoreline Management Act of 1971 (RCW 90.58), or local ordinances implementing it, before a development permit can be issued. <bold>[6] Building Regulations — Land Use Regulations — Offsite</bold> <bold>Parking — Terminability — Administrative Determination.</bold> The agency charged with enforcing parking requirements contained in development permits has the power to determine if the terminability of an offsite parking lease affects the permitted use. This determination is entitled to great deference by the courts.

<bold>[1] Criminal Law — Right to Counsel — Effective Assistance of</bold> <bold>Counsel — Test — In General.</bold> The representation provided by a criminal defense attorney is constitutionally deficient only if the attorney's conduct (1) fell below an objective standard of reasonableness and (2) prejudiced the defendant. <bold>[2] Criminal Law — Right to Counsel — Effective Assistance of</bold> <bold>Counsel — Presumption.</bold> The representation provided by a criminal defense attorney is presumed to be effective. <bold>[3] Criminal Law — Right to Counsel — Effective Assistance of</bold> <bold>Counsel — Trial Strategy — In General.</bold> A claim of constitutionally deficient representation cannot be based on a criminal defense attorney's legitimate tactical or strategic decisions.<page_number>Page 284</page_number> <bold>[4] Criminal Law — Right to Counsel — Effective Assistance of</bold> <bold>Counsel — Failure To Present Defense — Expert Opinion.</bold> A criminal defense attorney's failure to present a particular defense does not constitute ineffective representation if the defendant's expert witness did not believe that the standards for that defense were satisfied. <bold>[5] Criminal Law — Right to Counsel — Effective Assistance of</bold> <bold>Counsel — Failure To Present Defense — Cooperative Expert.</bold> A criminal defense attorney's duty to provide effective representation does not necessitate that the attorney consult a series of experts to find one who is willing to render an opinion that the standards for a particular defense are satisfied. <bold>[6] Personal Restraint — Grounds — New Material Evidence —</bold> <bold>Test.</bold> The standards for obtaining a new criminal trial based on newly discovered evidence (CrR 7.6(a)(3)) apply to obtaining relief from personal restraint based on material facts not previously presented (RAP 16.4(c)(3)). Thus, a person seeking relief from personal restraint based on material facts not previously presented has the burden of demonstrating that: (1) the facts would probably have changed the result of the trial; (2) the facts were discovered after the trial; (3) the facts could not have been discovered before the trial by exercising due diligence; (4) the facts are both material and admissible; and (5) the facts are not merely cumulative or impeaching. <bold>[7] Personal Restraint — Grounds — New Material Evidence —</bold> <bold>Opinion of New Expert.</bold> When a new expert obtained after a convicted person's trial forms an opinion not expressed at trial based on the same evidence introduced at trial, the expert's opinion does not constitute a new material fact not previously presented that would justify granting relief from personal restraint under RAP 16.4(c)(3).

<bold>[1] Criminal Law — Advisement of Rights — Necessity — In</bold> <bold>General.</bold> <italic>Miranda</italic> warnings are required only when the State's inquiry involves custodial interrogation by an agent of the State. <bold>[2] Criminal Law — Advisement of Rights — Necessity — Routine</bold> <bold>Booking Procedure.</bold> Questions required to carry out routine booking procedures, such as background questions involving identity and residence, do not constitute interrogation and need not be preceded by <italic>Miranda</italic> warnings, even if the answers to the questions are incriminating. <bold>[3] Criminal Law — Advisement of Rights — Necessity —</bold> <bold>Interrogation — What Constitutes.</bold> For purposes of determining the necessity for <italic>Miranda</italic> warnings, interrogation includes a state agent's words or actions that the agent should know are reasonably likely to elicit an incriminating response. <bold>[4] Criminal Law — Informant — Identification — Disclosure —</bold> <bold>Necessity — Failure To Raise in Trial Court.</bold> By not claiming in the trial court that a confidential informant was a material witness on the question of guilt, a criminal defendant waives the right to have the issue considered on appeal. <bold>[5] Criminal Law — Informant — Identification — Disclosure —</bold> <bold>Necessity — Test.</bold> The identity of a confidential informant need not be disclosed when disclosure would not be relevant and helpful to the defense or essential to a fair determination of the case.<page_number>Page 411</page_number> <bold>[6] Criminal Law — Trial — Taking Case From Jury — Sufficiency</bold> <bold>of Evidence — In General.</bold> Evidence is sufficient to support a criminal conviction if, after viewing the evidence and the reasonable inferences therefrom most favorably to the State, any rational trier of fact could have found the elements of the crime beyond a reasonable doubt. <bold>[7] Witnesses — Credibility — Determination.</bold> It is for the trier of fact to evaluate the credibility of witnesses, resolve conflicting testimony, and generally weigh the persuasiveness of the evidence. <bold>[8] Controlled Substances — Possession — Constructive Possession</bold> <bold>— Dominion and Control — Determination.</bold> A person constructively possesses controlled substances if, considering the totality of the situation, the person has dominion and control over the substances or the premises in which the substances are located.

<bold>[1] Criminal Law — Diminished Capacity — What Constitutes.</bold> A criminal defendant may negate the mental element of the crime charged by showing that a mental disorder had a specific effect of diminishing the defendant's ability to achieve that mental state. <bold>[2] Criminal Law — Diminished Capacity — Lay Testimony —</bold> <bold>Foundation — Expert Testimony.</bold> Lay testimony as to a criminal defendant's diminished capacity is inadmissible in the absence of an expert opinion establishing the existence of the mental disorder and the causal connection between the disorder and the defendant's diminished capacity. <bold>[3] Evidence — Review — Discretion of Court — In General.</bold> A trial court's decision regarding the admissibility of particular testimony is reviewed under the abuse of discretion standard. <bold>[4] Criminal Law — Diminished Capacity — Instruction —</bold> <bold>Necessity.</bold> A criminal defendant is not entitled to a diminished capacity instruction absent substantial evidence of the defendant's mental disorder and evidence explaining the connection between the disorder and the diminution of capacity.